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Guddu Jha vs The State Of Bihar on 2 March, 2017

Patna High Court CR. APP (SJ) No.261 of 2015                                                           1




            IN THE HIGH COURT OF JUDICATURE AT PATNA

                             Criminal Appeal (SJ) No.261 of 2015
                   Arising Out of PS.Case No. -52 Year- 2010 Thana -BIRAUL District- DARBHANGA
    ===========================================================

Manjula Devi, wife of Shyam Jha, resident of village – Jagdishpur ( Kahuwa ), P.S.
Biraul, District – Darbhanga

…. …. Appellant/s
Versus
The State of Bihar

…. …. Respondent/s
with

===========================================================
Criminal Appeal (SJ) No. 516 of 2015
Arising Out of PS.Case No. -52 Year- 2010 Thana -BIRAUL District- DARBHANGA
===========================================================
Guddu Jha, son of Shyam Jha, resident of village – Jagdishpur ( Kahuwa ), P.S.
Biraul, District – Darbhanga

…. …. Appellant/s
Versus
The State of Bihar

…. …. Respondent/s
===========================================================
Appearance :

(In CR. APP (SJ) No.261 of 2015)
For the Appellant/s : Mr. Ramchandra Sahay-Advocate
For the Respondent/s : Mr. Bipin Kumar-A.P.P.

(In CR. APP (SJ) No.516 of 2015)
For the Appellant/s : Mr. Ramchandra Sahay-Advocate
For the Respondent/s : Mr. Abhay Kumar-A.P.P.

===========================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 2-03-2017

Cr. Appeal (S.J.) No.261 of 2015 wherein Manjula Devi

is the appellant while in Cr. Appeal (S.J.) No.516 of 2015 wherein

Guddu Jha is the appellant commonly originate against the judgment

of conviction dated 20.11.2014 and order of sentence dated
Patna High Court CR. APP (SJ) No.261 of 2015 2

22.11.2014 passed by the Additional Sessions Judge-1st, Benipur,

Darbhanga in Sessions Trial No.422 of 2010 as well as Sessions Trial

No.241 of 2011 convicting both the appellants for an offence

punishable under Section 304B/34 of the I.P.C. and sentenced each of

them to undergo rigorous imprisonment for 10 years with a further

direction of set off against the period having undergone during trial in

terms of Section 428 of the Cr.P.C. whereupon have been heard

together and are being disposed of by a common judgment.

2. PW-6, Shiv Narayan Chaudhary, father of the

deceased Kiran Devi had recorded his fard-bayan on 12.04.2010 at

about 6.00 p.m. at Primary Health Centre, Biraul alleging inter alia

that on the same day at about 11.00 a.m. while he was at his village,

one of the villagers was telephoned from Kahua, Jagdishpur

disclosing the fact that daughter of Shiv Narayan Chaudhary died. He

was immediately informed whereupon rushed to the place of his

daughter Kiran Devi lying at village-Kahua Jagdishpur where he

found outer door bolted from outside. After opening of the door, they

gone inside the house and in Eastern room, his daughter Kiran Devi

was found lying on the ground by the side of a bed in burnt condition.

On query, she disclosed that her husband Guddu Jha has sprinkled

kerosene oil and during course thereof, her mother-in-law and Nanand

Leela Devi caught hold and further, assaulted. Then thereafter, her
Patna High Court CR. APP (SJ) No.261 of 2015 3

mother-in-law lighted match and threw it on her body. At that very

time, Bhulla Jha, Shyam Jha, Bhagwan Jha were provoking that she

be eliminated and further, they are ready to face consequence. The

motive for occurrence has been disclosed as about six years ago at the

time of marriage of Kiran Devi, Rs.30,000/- remained due in lieu of

dowry and for that, Guddu Jha, Shyam Jha, wife of Shyam Jha,

daughter of Shyam Jha were persistently demanding which, on

account of poverty, he found unable to pay and for that, Bhulla Jha

and Bhagwan Jha scolded him. Furthermore, deceased Kiran Devi

was regularly tortured in order to facilitate early procurement of the

same. It has also been disclosed that deceased had begotten two

siblings, Nitu Kumari aged about 3 years and a son aged about six

months.

3. On the basis of the aforesaid fard-bayan, Biraul P. S.

Case No.52 of 2010 was registered whereupon investigation

commenced and concluded by way of submission of chargesheet in

two stages as per presence of respective accused whereupon two

separate Sessions Trial, as indicated above, were registered which

during course of trial, got amalgamated and concluded whereunder

appellants found guilty and convicted while remaining got acquitted

whereupon there two appeals arise, the subject matter of adjudication.

4. The defence, as is evident from mode of cross-
Patna High Court CR. APP (SJ) No.261 of 2015 4

examination as well as statement recorded under Section 313 of the

Cr.P.C. is of complete denial of the occurrence. Furthermore, it has

also been pleaded that there was congenial, harmonious relationship

prevailing amongst the appellants as well as deceased and so, there

was no occasion for the appellants to advance demand of Rs.30,000/-,

which never oriented right from negotiation. Apart from this, it has

also been pleaded that the reason best known to the deceased, she

committed suicide by setting fire after locking the door from inside

while her husband Guddu (appellant) had gone to visit Darbhanga for

his treatment, father-in-law (since acquitted) had gone to participate in

a Panchayati, mother-in-law (appellant) had gone to the place of DW-

1 Ghurni Devi along with a kid and after seeing smoke coming out

from the house, the villagers rushed to rescue the deceased and for

that, after opening door, they gone inside, but till then, deceased was

already dead. On that very score, one DW has also been examined.

5. In order to substantiate its case, prosecution had

examined altogether ten (10) P.Ws. out of whom, PW-1 Dinanand

Mishra, PW-2 Ram Kumar Yadav, PW-3 Binod Kumar Mishra, PW-

4 Dr. Ramanand Chaudhary, PW-5 Hari Narayan Chaudhary, PW-6

Shiv Narayan Chaudhary, PW-7 Bindeshwar Chaudhary, PW-8 Kedar

Mishra, PW-9 Daisundar Devi and PW-10 Ahmad Hussain Khan, the

I.O. The prosecution had also exhibited the documents as Exhibit-1
Patna High Court CR. APP (SJ) No.261 of 2015 5

post mortem report, Exhibit-2 signature of PW-5 on inquest report,

Exhibit-2/1 inquest report, Exhibit-3 fard-bayan, Exhibit-4 case diary

Para-1 to 45. Though, defence had not exhibited any kind of

document, but as pointed out, had examined one DW namely Ghurni

Devi.

6. Whenever there happens to be prosecution under

Section 304B of the I.P.C., the mandate of law requires the

prosecution to substantiate:-

(a) That the deceased died on account of burnt or

bodily injury otherwise than under a normal circumstance.

(b) The aforesaid death had occurred within seven

years of marriage.

(c) Deceased was subjected to cruelty or

harassment by her husband or any relative of the husband.

(d) She has been treated with cruelty or harassment

for or in connection with demand of dowry.

(e) Such cruelty or harassment is shown to have

meted out to the woman soon before her death.

The only confusion relates with soon before her death

and for that, it has consistently been held that no straight jacket

formula could be prescribed there for and will vary as per facts of

individual case. In case, there happens to be consistent and conclusive

evidence of the prosecution on that very score, then in that event,
Patna High Court CR. APP (SJ) No.261 of 2015 6

there would be presumption of dowry death in terms of Section 113B

of the Evidence Act even then, the accused will have an opportunity

to rebut the aforesaid presumption being rebuttable.

7. In Sher Singh alias Partapa v. State of Haryana

reported in 2015 CRI.L.J. 1118 wherein the Hon’ble Apex Court had

extempore discussed the aim and ambition of the bill and further,

held:-

“10. It is already empirically evident that the

prosecution, ubiquitously and in dereliction of duty,

in the case of an abnormal death if a young bride

confines its charges to Section 304B because the

obligation to provide proof becomes least

burdensome for it; this is the significance that

attaches to a deeming provision. But, in any death

other than in normal circumstances, we see no

justification for not citing either Section 302 or

Section 306, as the circumstances of the case call

for. Otherwise, the death would logically fall in the

category of an accidental one. It is not sufficient to

include only Section 498A as the punishment is

relatively light. Homicidal death is chargeable and

punishable under Sections 302 and 304B if

circumstances prevail triggering these provisions.

11. Some doubts remain on the aspect of
Patna High Court CR. APP (SJ) No.261 of 2015 7

presumption of innocence, deemed culpability and

burden of proof. One of our Learned Brothers has

in Pathan Hussain Basha v. State of Andhra

Pradesh (2012) 8 SCC 594, after extensively

extracting from the previous judgment authored by

him (but without indicating so) expressed two

opinions – (a) that Article 20 of the Constitution of

India contains a presumption of innocence in favour

of a suspect and, (b) that the concept of deeming

fiction is hardly applicable to criminal

jurisprudence. The logical consequence of both

these conclusions would lead to the striking down of

Section 8A of the Dowry Act, Section 113B of the

Evidence Act, and possibly Section 304B of the IPC,

but neither decision does so. So far as the first

conclusion is concerned, suffice it to reproduce

Article 20 of the Constitution:

20. Protection in respect of conviction for offences.-

(1) No person shall be convicted of any offence

except for violation of a law in force at the time of

the commission of the act charged as an offence,

nor be subjected to a penalty greater than that

which might have been inflicted under the law in

force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for
Patna High Court CR. APP (SJ) No.261 of 2015 8

the same offence more than once.

(3) No person accused of any offence shall be

compelled to be a witness against himself.

Even though there may not be any Constitutional

protection to the concept of presumption of

innocence, this is so deeply ingrained in all

Common Law legal systems so as to render it

ineradicable even in India, such that the departure

or deviation from this presumption demands

statutory sanction. This is what the trilogy of dowry

legislation has endeavoured to ordain.

12. In our opinion, it is beyond cavil that where the

same word is used in a section and/or in sundry

segments of a statute, it should be attributed the

same meaning, unless there are compelling reasons

to do otherwise. The obverse is where different

words are employed in close proximity, or in the

same section, or in the same enactment, the

assumption must be that the legislature intended

them to depict disparate situations, and delineate

dissimilar and diverse ramifications. Ergo,

ordinarily Parliament could not have proposed to

ordain that the prosecution should “prove” the

existence of a vital sequence of facts, despite having

employed the word “shown” in Section 304B. The
Patna High Court CR. APP (SJ) No.261 of 2015 9

question is whether these two words can be

construed as synonymous. It seems to us that if the

prosecution is required to prove, which always

means beyond reasonable doubt, that a dowry death

has been committed, there is a risk that the purpose

postulated in the provision may be reduced to a

cipher. This method of statutory interpretation has

consistently been disapproved and deprecated

except in exceptional instances where the syntax

permits reading down or reading up of some words

of the subject provisions.

13. In Section 113A of the Evidence Act Parliament

has, in the case of a wife’s suicide, “presumed” the

guilt of the husband and the members of his family.

Significantly, in Section 113B which pointedly

refers to dowry deaths, Parliament has again

employed the word “presume”. However, in

substantially similar circumstances, in the event of

a wife’s unnatural death, Parliament has in Section

304B “deemed” the guilt of the husband and the

members of his family. The Concise Oxford

Dictionary defines the word “presume” as:

supposed to be true, take for granted; whereas

“deem” as: regard, consider; and whereas “show”

as: point out and prove. The Black’s Law
Patna High Court CR. APP (SJ) No.261 of 2015 10

Dictionary (5th Edition) defines the word “show”

as- to make apparent or clear by the evidence, to

prove; “deemed” as- to hold, consider, adjudge,

believe, condemn, determine, construed as if true;

“presume” as- to believe or accept on probable

evidence; and “Presumption”, in Black’s, “is a rule

of law, statutory or judicial, by which finding of a

basic fact gives rise to existence of presumed fact,

until presumption is rebutted.” The Concise

Dictionary of Law, Oxford Paperbacks has this

comprehensive yet succinct definition of burden of

proof which is worthy of reproduction:

“Burden of Proof: The duty of a party to litigation

to prove a fact or facts in issue. Generally the

burden of proof falls upon the party who

substantially asserts the truth of a particular fact

(the prosecution or the plaintiff). A distinction is

drawn between the persuasive (or legal) burden,

which is carried by the party who as a matter of law

will lose the case if he fails to prove the fact in

issue; and the evidential burden (burden of

adducing evidence or burden of going forward),

which is the duty of showing that there is sufficient

evidence to raise an issue fit for the consideration

of the trier of fact as to the existence or non-
Patna High Court CR. APP (SJ) No.261 of 2015 11

existence of a fact in issue. The normal rule is that a

defendant is presumed to be innocent until he is

proved guilty; it is therefore the duty of the

prosecution to prove its case by establishing both

the actus reus of the crime and the mens rea. It must

first satisfy the evidential burden to show that its

allegations have something to support them. If it

cannot satisfy this burden, the defence may submit

or the judge may direct that there is no case to

answer, and the judge must direct the jury to acquit.

The prosecution may sometimes rely on

presumptions of fact to satisfy the evidential burden

of proof (e.g. the fact that a woman was subjected

to violence during sexual intercourse will normally

raise a presumption to support a charge of rape and

prove that she did not consent). If, however, the

prosecution has established a basis for its case, it

must then continue to satisfy the persuasive burden

by proving its case beyond reasonable doubt (see

proof beyond reasonable doubt). It is the duty of the

judge to tell the jury clearly that the prosecution

must prove its case and that it must prove it beyond

reasonable doubt; if he does not give this clear

direction, the defendant is entitled to be acquitted.

There are some exceptions to the normal rule that
Patna High Court CR. APP (SJ) No.261 of 2015 12

the burden of proof is upon the prosecution. The

main exceptions are as follows. (1) When the

defendant admits the elements of the crime (the

actus reus and mens rea) but pleads a special

defence, the evidential burden is upon him to prove

his defence. This may occur, the example, in a

prosecution for murder in which the defendant

raises a defence of self-defence. (2) When the

defendant pleads automatism, the evidential burden

is upon him. (3) When the defendant pleads

insanity, both the evidential and persuasive burden

rest upon him. In this case, however, it is sufficient

if he proves his case on a balance of probabilities

(i.e. he must persuade the jury that it is more likely

that he is telling the truth than not). (4) In some

cases statute expressly places a persuasive burden

on the defendant; for example, a person who carries

an offensive weapon in public is guilty of an offence

unless he proves that he had lawful authority or a

reasonable excuse for carrying it”.

14. As is already noted above, Section 113B of the

Evidence Act and Section 304B of the IPC were

introduced into their respective statutes

simultaneously and, therefore, it must ordinarily be

assumed that Parliament intentionally used the
Patna High Court CR. APP (SJ) No.261 of 2015 13

word ‘deemed’ in Section 304B to distinguish this

provision from the others. In actuality, however, it

is well nigh impossible to give a sensible and

legally acceptable meaning to these provisions,

unless the word ‘shown’ is used as synonymous to

‘prove’ and the word ‘presume’ as freely

interchangeable with the word ‘deemed’. In the

realm of civil and fiscal law, it is not difficult to

import the ordinary meaning of the word ‘deem’ to

denote a set of circumstances which call to be

construed contrary to what they actually are. In

criminal legislation, however, it is unpalatable to

adopt this approach by rote. We have the high

authority of the Constitution Bench of this Court

both in State of Travancore-Cochin v. Shanmugha

Vilas Cashewnut Factory AIR 1953 SC 333 and

State of Tamil Nadu v. Arooran Sugars Limited

(1997) 1 SCC 326, requiring the Court to ascertain

the purpose behind the statutory fiction brought

about by the use of the word ‘deemed’ so as to give

full effect to the legislation and carry it to its logical

conclusion. We may add that it is generally posited

that there are rebuttable as well as irrebuttable

presumptions, the latter oftentimes assuming an

artificiality as actuality by means of a deeming

provision. It is abhorrent to criminal jurisprudence
Patna High Court CR. APP (SJ) No.261 of 2015 14

to adjudicate a person guilty of an offence even

though he had neither intention to commit it nor

active participation in its commission. It is after

deep cogitation that we consider it imperative to

construe the word ‘shown’ in Section 304B of the

IPC as to, in fact, connote ‘prove’. In other words, it

is for the prosecution to prove that a ‘dowry death’

has occurred, namely, (i) that the death of a woman

has been caused in abnormal circumstances by her

having been burned or having been bodily injured,

(ii) within seven years of a marriage, (iii) and that

she was subjected to cruelty or harassment by her

husband or any relative of her husband, (iv) in

connection with any demand for dowry and (v) that

the cruelty or harassment meted out to her

continued to have a causal connection or a live link

with the demand of dowry. We are aware that the

word ‘soon’ finds place in Section 304B; but we

would prefer to interpret its use not in terms of days

or months or years, but as necessarily indicating

that the demand for dowry should not be stale or an

aberration of the past, but should be the continuing

cause for the death under Section 304B or the

suicide under Section 306 of the IPC. Once the

presence of these concomitants are established or

shown or proved by the prosecution, even by
Patna High Court CR. APP (SJ) No.261 of 2015 15

preponderance of possibility, the initial

presumption of innocence is replaced by an

assumption of guilt of the accused, thereupon

transferring the heavy burden of proof upon him

and requiring him to produce evidence dislodging

his guilt, beyond reasonable doubt. It seems to us

that what Parliament intended by using the word

‘deemed’ was that only preponderance of evidence

would be insufficient to discharge the husband or

his family members of their guilt. This

interpretation provides the accused a chance of

proving their innocence. This is also the postulation

of Section 101 of the Evidence Act. The purpose of

Section 113B of the Evidence Act and Section 304B

of the IPC, in our opinion, is to counter what is

commonly encountered – the lack or the absence of

evidence in the case of suicide or death of a woman

within seven years of marriage. If the word “shown”

has to be given its ordinary meaning then it would

only require the prosecution to merely present its

evidence in Court, not necessarily through oral

deposition, and thereupon make the accused lead

detailed evidence to be followed by that of the

prosecution. This procedure is unknown to Common

Law systems, and beyond the contemplation of the

Cr.P.C.

Patna High Court CR. APP (SJ) No.261 of 2015 16

15. The width and amplitude of a provision deeming

the guilt of a person in a legal system founded on a

Constitution needs to be briefly reflected on. The

Constitution is the grundnorm on which the legal

framework has to be erected and its plinth cannot

be weakened for fear of the entire structure falling

to the ground. If the Constitution expressly affirms

or prohibits particular state of affairs, all statutory

provisions which are incongruent thereto must be

held as ultra vires and, therefore, must not be

adhered to. We have already noted that Article 20

of our Constitution while not affirming the

presumption of innocence does not prohibit it,

thereby, leaving it to Parliament to ignore it

whenever found by it to be necessary or expedient.

A percutaneous scrutiny reveals that some legal

principles such as presumption of innocence can be

found across a much wider legal system,

ubiquitously in the Common Law system, and

restrictively in the Civil Law system. It seems to us

that the presumption of innocence is one such legal

principle which strides the legal framework of

several countries owing allegiance to the Common

Law; even International Law bestows its

imprimatur thereto. Article 11.1 of the Universal

Declaration of Human Rights, 1948 states –
Patna High Court CR. APP (SJ) No.261 of 2015 17

“Everyone charged with a penal offence has the

right to be presumed innocent until proved guilty

according to law in a public trial at which he has

had all the guarantees necessary for his defence.”

Article 14(3)(g) of the International Covenant on

Civil and Political Rights, 1966, assures as a

minimum guarantee that everyone has a right not to

be compelled to testify against himself or to confess

guilt. Article 6 of the European Convention for the

Protection of Human Rights and Fundamental

Freedoms, firstly, promises the right to a fair trial

and secondly, assures that anyone charged with a

criminal offence shall be presumed innocent until

proved guilty according to law. We may

immediately emphasise that the tenet of presumed

innocence will always give way to explicit

legislation to the contrary. The presumption of

innocence has also been recognised in certain

circumstances to constitute a basic human right.

Parliament, however, has been tasked with the

responsibility of locating myriad competing, if not

conflicting, societal interests. It is quite apparent

that troubled by the exponential increase in the

incidents of bride burning, Parliament thought it

prudent, expedient and imperative to shift the

burden of proof in contradistinction to the onus of
Patna High Court CR. APP (SJ) No.261 of 2015 18

proof on to the husband and his relatives in the

cases where it has been shown that a dowry death

has occurred. The inroad into or dilution of the

presumption of innocence of an accused has, even

de hors statutory sanction, been recognised by

Courts in those cases where death occurs in a home

where only the other spouse is present; as also

where an individual is last seen with the deceased.

The deeming provision in Section 304B is,

therefore, neither a novelty in nor an anathema to

our criminal law jurisprudence.[See Mir

Mohammad Omar and Subramaniam v. State of

Tamil Nadu (2009) 14 SCC 415.

16. It has already been pointed out that both in

Pathan Hussain Basha as well as in Ashok Kumar

v. State of Haryana 2010 (12) SCC 350, authored

by our same learned Brother, the use of word

“shown” in Section 304B has palpably not been

given due weightage inasmuch as it has been freely

substituted by the word “proved”. To the contrary in

Nallam Veera Stayanandam v. Public Prosecutor

2004 (10) SCC 769, it has been opined that “it is for

the defence in this case to satisfy the Court that

irrespective of the prosecution case in regard to

dowry demand and harassment, the death of the
Patna High Court CR. APP (SJ) No.261 of 2015 19

deceased has not occurred because of that and that

the same resulted from a cause totally alien to such

dowry demand or harassment.

17. Keeping in perspective that Parliament has

employed the amorphous pronoun/noun “it” (which

we think should be construed as an allusion to the

prosecution), followed by the word “shown” in

Section 304B, the proper manner of interpreting the

Section is that “shown” has to be read up to mean

“prove” and the word “deemed” has to be read

down to mean “presumed”. Neither life nor liberty

can be emasculated without providing the

individual an opportunity to disclose extenuating or

exonerating circumstances. It was for this reason

that this Court struck down the mandatory death

sentence in Section 303 IPC in its stellar decision in

Mithu vs. State of Punjab, AIR 1983 SC 473.

Therefore, the burden of proof weighs on the

husband to prove his innocence by dislodging his

deemed culpability, and that this has to be preceded

only by the prosecution proving the presence of

three factors, viz. (i) the death of a woman in

abnormal circumstances (ii) within seven years of

her marriage, and (iii) and that the death had a live

link with cruelty connected with any demand of
Patna High Court CR. APP (SJ) No.261 of 2015 20

dowry. The other facet is that the husband has

indeed a heavy burden cast on his shoulders in that

his deemed culpability would have to be displaced

and overturned beyond reasonable doubt. This

emerges clearly as the manner in which Parliament

sought to combat the scourge and evil of rampant

bride burning or dowry deaths, to which manner we

unreservedly subscribe. In order to avoid prolixity

we shall record that our understanding of the law

finds support in an extremely extensive and erudite

judgment of this Court in P.N. Krishna Lal v.

Government of Kerala, 1995 Supp (2) SCC 187, in

which decisions spanning the globe have been

mentioned and discussed. It is also important to

highlight that Section 304B does not require the

accused to give evidence against himself but casts

the onerous burden to dislodge his deemed guilt

beyond reasonable doubt. In our opinion, it would

not be appropriate to lessen the husband’s onus to

that of preponderance of probability as that would

annihilate the deemed guilt expressed in Section

304B, and such a curial interpretation would defeat

and neutralise the intentions and purposes of

Parliament. A scenario which readily comes to

mind is where dowry demands have indubitably

been made by the accused husband, where in an
Patna High Court CR. APP (SJ) No.261 of 2015 21

agitated state of mind, the wife had decided to leave

her matrimonial home, and where while travelling

by bus to her parents’ home she sustained fatal burn

injuries in an accident/collision which that bus

encountered. Surely, if the husband proved that he

played no role whatsoever in the accident, he could

not be deemed to have caused his wife’s death. It

needs to be immediately clarified that if the wife

had taken her life by jumping in front of a bus or

before a train, the husband would have no defence.

Examples can be legion, and hence we shall abjure

from going any further. All that needs to be said is

that if the husband proves facts which portray,

beyond reasonable doubt, that he could not have

caused the death of his wife by burns or bodily

injury or not involved in any manner in her death in

abnormal circumstances, he would not be culpable

under Section 304B.”

8. This case, as stated hereinabove, has some sort of

peculiarity in the background of examination of DW, who during

course of her evidence admitted death of deceased by fire, though

suicidal in nature, however, proper appreciation will be at the relevant

stage of judgment, save and except acknowledging that whenever

defence witness is examined, then in that event, the divulgence of fact
Patna High Court CR. APP (SJ) No.261 of 2015 22

coming out from his evidence can go against accused as has been held

by the Apex Court in Ashok Kumar vs. State of Haryana reported in

(2010) 12 SCC 350.

9. From the evidence of DW-1, it is apparent that though

she had not disclosed the time span over marriage, but had admitted

that deceased died of burnt at her sasural and for that, she explained it

as suicide. In the aforesaid background, when the evidence of PW-4

Dr. Ramanand Chaudhary is taken up, it is apparent that deceased

died of burnt injury. He further perceived following ante mortem

injuries:-

Scalp, eyebrow and pubic hairs were singed.

Kerosene oil like smell perceived, in the smell of the body of

deceased. Dermoepidermat burn wound was seen over the face,

neck, front and back portion of trunk. Upper limbs, both lower

limbs including both sole of feets and genetalia. Black soots were

seen over burnt portion of the body.

On dissection-The mucosa of respiratory passage

was congested, All internal organs in general liver, spleen and

both kidneys were found congested. Both lungs were congested.

Right chamber of heart was full and left empty. Urinary bladder

was empty, uterus was non-pregnant. Stomach was empty. The

brain and its meninges was congested.

Opinion- The above noted burn injuries were ante

mortem in nature. Death resulted from hypovolemic shock, due to
Patna High Court CR. APP (SJ) No.261 of 2015 23

above mentioned injuries caused by flame fire. Time elapsed since

death was 18 to 24 Hrs. from the time of P. M. Examination.

And further, kerosene oil happens to be source of

ignition, therefore, death by burnt is found out of controversy.

10. With regard to other ingredients, the time span should

be within seven years of marriage. It is apparent that right from fard-

bayan, there happens to be disclosure at the end of the informant, PW-

6, father of deceased that death occurred within six years of her

marriage and is found intact even during course of evidence which

PW-5 in Para-4 of his examination-in-chief had reiterated and stood

firm during course of cross-examination at Para-11, apart from being

substantiated by other PWs. Therefore, this issue also found duly

proved.

11. Now, the cumulative aspect happens to be regarding

demand of dowry and further, subject of cruelty or harassment to the

deceased soon before her death. On the above score, two kinds of

evidence have been adduced. The first one relates with oral dying

declaration having made by the deceased and the second one direct

evidence by the PWs on this score.

12. Now, coming to reliability of oral dying declaration,

it is evident that all the material witnesses have stated that when they

reached at the house of deceased, the main door was found closed
Patna High Court CR. APP (SJ) No.261 of 2015 24

from outside, whereupon was opened. During said course, heard

sound of groaning of deceased whereupon they gone near her,

enquired whereupon deceased disclosed that in the background of

persistent demand of dowry appertaining to Rs.30,000/-, which

remained due, the husband sprinkled kerosene oil and then, mother-in-

law set fire, and at that very time, Bhulla and Bhagwan enticed them.

During cross-examination, as is evident, PW-1 was not all cross-

examined on the score whether deceased was dead since before their

arrival, or deceased was not at all in a position to make any kind of

disclosure. However, from Para-5, he had stated that he came to know

on the disclosure having made before him. PW-2, in likewise manner,

also not been cross-examined on the physical mental condition of the

deceased as well as she was dead since before their arrival, or was not

in a position to make any statement. PW-3 also not been cross-

examined to that effect. However, at Para-16, he had stated with

regard to physical condition of the deceased on their arrival. PW-5,

under Para-13, had stated regarding physical condition of the deceased

whom they had seen after entrance in the house, but again, defence

did not dare to test his status over dying declaration. PW-6 also not

specifically been cross-examined and in similarity, PW-7 and PW-8,

have also been cross-examined. Furthermore, as is evident that by

way of cross-examination, the defence drew attention of each of the
Patna High Court CR. APP (SJ) No.261 of 2015 25

PW on substantial part of their evidence, but the same has not been

confronted to PW-10, the I.O. and that being so, it could very well be

said that no material development have been found in the evidence of

each PWs. Apart from this, as stated above, PW-4, doctor has not

been cross-examined to suggest that there was no possibility of

deceased being in position to make dying declaration.

13. Coming on the score of admissibility, acceptability

of oral dying declaration that has been subject of minute scrutiny in

Vijay Pal vs. State (GNCT) of Delhi reported in 2015 CRI.L.J. 2041,

it has been held:-

“15. The submission of the learned counsel for the

appellant is that the oral dying declaration lacks

intrinsic truth and it does not deserve acceptance.

At this juncture we think it appropriate to refer to

certain authorities how an oral dying declaration is

to be scrutinized.

16. In the case of Laxman v. State of

Maharashtra[(2002) 6 SCC 710], the Constitution

Bench has held thus:

“The juristic theory regarding acceptability of a

dying declaration is that such declaration is made

in extremity, when the party is at the point of death

and when every hope of this world is gone, when
Patna High Court CR. APP (SJ) No.261 of 2015 26

every motive to falsehood is silenced, and the man

is induced by the most powerful consideration to

speak only the truth. Notwithstanding the same,

great caution must be exercised in considering the

weight to be given to this species of evidence on

account of the existence of many circumstances

which may affect their truth. The situation in which

a man is on the deathbed is so solemn and serene, is

the reason in law to accept the veracity of his

statement. It is for this reason the requirements of

oath and cross-examination are dispensed with.

Since the accused has no power of cross-

examination, the courts insist that the dying

declaration should be of such a nature as to inspire

full confidence of the court in its truthfulness and

correctness. The court, however, has always to be

on guard to see that the statement of the deceased

was not as a result of either tutoring or prompting

or a product of imagination. The court also must

further decide that the deceased was in a fit state of

mind and had the opportunity to observe and

identify the assailant. Normally, therefore, the court

in order to satisfy whether the deceased was in a fit

mental condition to make the dying declaration

looks up to the medical opinion. But where the

eyewitnesses state that the deceased was in a fit and
Patna High Court CR. APP (SJ) No.261 of 2015 27

conscious state to make the declaration, the medical

opinion will not prevail, nor can it be said that

since there is no certification of the doctor as to the

fitness of the mind of the declarant, the dying

declaration is not acceptable. A dying declaration

can be oral or in writing and any adequate method

of communication whether by words or by signs or

otherwise will suffice provided the indication is

positive and definite.”

17. The aforesaid judgment makes it absolutely

clear that the dying declaration can be oral or in

writing and any adequate method of communication

whether by words or by signs or otherwise will

suffice, provided the communication is positive and

definite. There cannot be any cavil over the

proposition that a dying declaration cannot be

mechanically relied upon. In fact, it is the duty of

the Court to examine a dying declaration with

studied scrutiny to find out whether the same is

voluntary, truthful and made in a conscious state of

mind and further it is without any influence.

18. At this juncture, we may quote a passage from

Babulal v. State of M.P.[(2003) 12 SCC 490]

wherein the value of dying declaration in evidence

has been stated:-

Patna High Court CR. APP (SJ) No.261 of 2015 28

“7. … A person who is facing imminent death, with

even a shadow of continuing in this world

practically non-existent, every motive of falsehood

is obliterated. The mind gets altered by most

powerful ethical reasons to speak only the truth.

Great solemnity and sanctity is attached to the

words of a dying person because a person on the

verge of death is not likely to tell lies or to concoct

a case so as to implicate an innocent person. The

maxim is “a man will not meet his Maker with a lie

in his mouth” (nemo moriturus praesumitur

mentiri). Mathew Arnold said, “truth sits on the lips

of a dying man”. The general principle on which the

species of evidence is admitted is that they are

declarations made in extremity, when the party is at

the point of death, and when every hope of this

world is gone, when every motive to falsehood is

silenced and mind induced by the most powerful

consideration to speak the truth; situation so

solemn that law considers the same as creating an

obligation equal to that which is imposed by a

positive oath administered in a court of justice.”

19. Dealing with the oral dying declaration, a two-

Judge Bench in Prakash V. State of M.P.[(1992) 4

SCC 225] has stated thus:

Patna High Court CR. APP (SJ) No.261 of 2015 29

“11. … In the ordinary course, the members of the

family including the father were expected to ask the

victim the names of the assailants at the first

opportunity and if the victim was in a position to

communicate, it is reasonably expected that he

would give the names of the assailants if he had

recognised the assailants. In the instant case there

is no occasion to hold that the deceased was not in

a position to identify the assailants because it is

nobody’s case that the deceased did not know the

accused persons. It is therefore quite likely that on

being asked the deceased would name the

assailants. In the facts and circumstances of the

case the High Court has accepted the dying

declaration and we do not think that such a finding

is perverse and requires to be interfered with.”

20. Thus, the law is quite clear that if the dying

declaration is absolutely credible and nothing is

brought on record that the deceased was in such a

condition, he or she could not have made a dying

declaration to a witness, there is no justification to

discard the same. In the instant case, PW-1 had

immediately rushed to the house of the deceased

and she had told him that her husband had poured

kerosene on her. The plea taken by the appellant

that he has been falsely implicated because his
Patna High Court CR. APP (SJ) No.261 of 2015 30

money was deposited with the in-laws and they

were not inclined to return, does not also really

breathe the truth, for there is even no suggestion to

that effect.

21. It is contended by the learned counsel for the

appellant when the deceased sustained 100% burn

injuries, she could not have made any statement to

her brother. In this regard, we may profitably refer

to the decision in Mafabhai Nagarbhai Raval v.

State of Gujarat[(1992) 4 SCC 69] wherein it has

been held a person suffering 99% burn injuries

could be deemed capable enough for the purpose of

making a dying declaration. The Court in the said

case opined that unless there existed some inherent

and apparent defect, the trial Court should not have

substituted its opinion for that of the doctor. In the

light of the facts of the case, the dying declaration

was found to be worthy of reliance.

22. In State of Madhya Pradesh v. Dal Singh and

Others[(2013)14 SCC 159], a two-Judge Bench

placed reliance on the dying declaration of the

deceased who had suffered 100% burn injuries on

the ground that the dying declaration was found to

be credible.”

14. At the present juncture, deficiency persisting on
Patna High Court CR. APP (SJ) No.261 of 2015 31

record, though not raised on behalf of appellants, have been perceived

which relates with manner of recording of statement of appellants

under Section 313 Cr.P.C. From plain reading of the same, it is

evident that learned trial Court confronted the incriminating

circumstances in generic way, however failed to confront with the

event of dying declaration. However, the impact of such omission on

trial, has been taken into consideration by the Apex Court in Nar

Singh vs. State of Haryana reported in 2015 CRI.L.J. 576,

whereunder it has been held:-

“16. Undoubtedly, the importance of a statement

under Section 313 Cr.P.C., insofar as the accused is

concerned, can hardly be minimised. The statutory

provision is based on the rules of natural justice for

an accused, who must be made aware of the

circumstances being put against him so that he can

give a proper explanation to meet that case. If an

objection as to Section 313 Cr.P.C. statement is

taken at the earliest stage, the Court can make good

the defect and record additional statement of the

accused as that would be in the interest of all. When

objections as to defective Section 313 Cr.P.C.

statement is raised in the appellate court, then

difficulty arises for the prosecution as well as the

accused. When the trial court is required to act in
Patna High Court CR. APP (SJ) No.261 of 2015 32

accordance with the mandatory provisions of

Section 313 Cr.P.C., failure on the part of the trial

court to comply with the mandate of the law, in our

view, cannot automatically enure to the benefit of

the accused. Any omission on the part of the Court

to question the accused on any incriminating

circumstance would not ipso facto vitiate the trial,

unless some material prejudice is shown to have

been caused to the accused. Insofar as non-

compliance of mandatory provisions of Section 313

Cr.P.C., it is an error essentially committed by the

learned Sessions Judge. Since justice suffers in the

hands of the Court, the same has to be corrected or

rectified in the appeal.

17. So far as Section 313 Cr.P.C. is concerned,

undoubtedly, the attention of the accused must

specifically be brought to inculpable pieces of

evidence to give him an opportunity to offer an

explanation, if he chooses to do so. A three-Judge

Bench of this Court in Wasim Khan v. The State of

Uttar Pradesh, AIR 1956 SC 400; and Bhoor

Singh Anr. v. State of Punjab, AIR 1974 SC

1256 held that every error or omission in

compliance of the provisions of Section 342 of the

old Cr.P.C. does not necessarily vitiate trial. The

accused must show that some prejudice has been
Patna High Court CR. APP (SJ) No.261 of 2015 33

caused or was likely to have been caused to him.

18. Observing that omission to put any material

circumstance to the accused does not ipso facto

vitiate the trial and that the accused must show

prejudice and that miscarriage of justice had been

sustained by him, this Court in Santosh Kumar

Singh v. State through CBI, 2010(4)

R.C.R.(Criminal) 593 : 2010(5) Recent Apex

Judgments (R.A.J.) 518 : (2010) 9 SCC 747 (Para

92), has held as under:

“… the facts of each case have to be

examined but the broad principle is that all

incriminating material circumstances must

be put to an accused while recording his

statement under Section 313 of the Code,

but if any material circumstance has been

left out that would not ipso facto result in

the exclusion of that evidence from

consideration unless it could further be

shown by the accused that prejudice and

miscarriage of justice had been sustained by

him…”

19. In Paramjeet Singh alias Pamma v. State of

Uttarakhand (supra), this Court has held as

under:-

Patna High Court CR. APP (SJ) No.261 of 2015 34

“Thus, it is evident from the above that the

provisions of Section 313 Cr.P.C. make it

obligatory for the court to question the

accused on the evidence and circumstances

against him so as to offer the accused an

opportunity to explain the same. But, it

would not be enough for the accused to

show that he has not been questioned or

examined on a particular circumstance,

instead, he must show that such non-

examination has actually and materially

prejudiced him and has resulted in the

failure of justice. In other words, in the

event of any inadvertent omission on the

part of the court to question the accused on

an incriminating circumstance cannot ipso

facto vitiate the trial unless it is shown that

some material prejudice was caused to the

accused by the omission of the court.”

20. The question whether a trial is vitiated or not

depends upon the degree of the error and the

accused must show that non-compliance of Section

313 Cr.P.C. has materially prejudiced him or is

likely to cause prejudice to him. Merely because of

defective questioning under Section 313 Cr.P.C., it

cannot be inferred that any prejudice had been
Patna High Court CR. APP (SJ) No.261 of 2015 35

caused to the accused, even assuming that some

incriminating circumstances in the prosecution case

had been left out. When prejudice to the accused is

alleged, it has to be shown that accused has

suffered some disability or detriment in relation to

the safeguard given to him under Section 313

Cr.P.C. Such prejudice should also demonstrate

that it has occasioned failure of justice to the

accused. The burden is upon the accused to prove

that prejudice has been caused to him or in the facts

and circumstances of the case, such prejudice may

be implicit and the Court may draw an inference of

such prejudice. Facts of each case have to be

examined to determine whether actually any

prejudice has been caused to the appellant due to

omission of some incriminating circumstances

being put to the accused.

21. We may refer to few judgments of this Court

where this Court has held that omission to put the

question under Section 313 Cr.P.C. has caused

prejudice to the accused vitiating the conviction. In

State of Punjab v. Hari Singh Ors. (2009) 4

SCC 200, question regarding conscious possession

of narcotics was not put to the accused when he was

examined under Section 313 Cr.P.C. Finding that

question relating to conscious possession of
Patna High Court CR. APP (SJ) No.261 of 2015 36

contraband was not put to the accused, this Court

held that the effect of such omission vitally affected

the prosecution case and this Court affirmed the

acquittal. In Kuldip Singh Ors. v. State of Delhi

2004(1) R.C.R.(Criminal) 292 : (2003) 12 SCC

528, this Court held that when important

incriminating circumstance was not put to the

accused during his examination under Section 313

Cr.P.C., prosecution cannot place reliance on the

said piece of evidence.

22. We may also refer to other set of decisions

where in the facts and circumstances of the case,

this Court held that no prejudice or miscarriage of

justice has been occasioned to the accused. In

Santosh Kumar Singh v. State thr. CBI (supra), it

was held that on the core issues pertaining to the

helmet and the ligature marks on the neck which

were put to the doctor, the defence counsel had

raised comprehensive arguments before the trial

court and also before the High Court and the

defence was, therefore, alive to the circumstances

against the appellant and that no prejudice or

miscarriage of justice had been occasioned. In

Alister Anthony Pareira v. State of Maharashtra

2012(1) R.C.R.(Criminal) 524 : 2012(1) Recent

Apex Judgments 43 : (2012) 2 SCC 648, in the
Patna High Court CR. APP (SJ) No.261 of 2015 37

facts and circumstances, it was held that by not

putting to the appellant expressly the chemical

analyser’s report and the evidence of the doctor, no

prejudice can be said to have been caused to the

appellant and he had full opportunity to say what he

wanted to say with regard to the prosecution

evidence and that the High Court rightly rejected

the contention of the appellant-accused in that

regard.

23. When such objection as to omission to put the

question under Section 313 Cr.P.C. is raised by the

accused in the appellate court and prejudice is also

shown to have been caused to the accused, then

what are the courses available to the appellate

court? The appellate court may examine the convict

or call upon the counsel for the accused to show

what explanation the accused has as regards the

circumstances established against him but not put

to him under Section 313 Cr.P.C. and the said

answer can be taken into consideration.

24. In Shivaji Sahabrao Bobade Anr. v. State of

Maharashtra (1973) 2 SCC 793, this Court

considered the fallout of the omission to put a

question to the accused on vital circumstance

appearing against him and this Court has held that

the appellate court can question the counsel for the
Patna High Court CR. APP (SJ) No.261 of 2015 38

accused as regards the circumstance omitted to be

put to the accused and in para 16 it was held as

under:-

“…. It is trite law, nevertheless fundamental,

that the prisoner’s attention should be

drawn to every inculpatory material so as to

enable him to explain it. This is the basic

fairness of a criminal trial and failures in

this area may gravely imperil the validity of

the trial itself, if consequential miscarriage

of justice has flowed. However, where such

an omission has occurred it does not ipso

facto vitiate the proceedings and prejudice

occasioned by such defect must be

established by the accused. In the event of

evidentiary material not being put to the

accused, the Court must ordinarily eschew

such material from consideration. It is also

open to the appellate Court to call upon the

counsel for the accused to show what

explanation the accused has as regards the

circumstances established against him but

not put to him and if the accused is unable

to offer the appellate Court any plausible or

reasonable explanation of such

circumstances, the Court may assume that
Patna High Court CR. APP (SJ) No.261 of 2015 39

no acceptable answer exists and that even if

the accused had been questioned at the

proper time in the trial Court he would not

have been able to furnish any good ground

to get out of the circumstances on which the

trial Court had relied for its conviction. In

such a case, the Court proceeds on the

footing that though a grave irregularity has

occurred as regards compliance with

Section 342, Cr.P.C., the omission has not

been shown to have caused prejudice to the

accused….” (underlining added)

25. The same view was reiterated by this Court in

State (Delhi Administration) v. Dharampal,

2001(4) R.C.R.(Criminal) 550 : (2001) 10 SCC

372, wherein this Court has held as under:-

“Thus it is to be seen that where an

omission, to bring the attention of the

accused to an inculpatory material has

occurred that does not ipso facto vitiate the

proceedings. The accused must show that

failure of justice was occasioned by such

omission. Further, in the event of an

inculpatory material not having been put to

the accused, the appellate Court can always

make good that lapse by calling upon the
Patna High Court CR. APP (SJ) No.261 of 2015 40

counsel for the accused to show what

explanation the accused has as regards the

circumstances established against the

accused but not put to him.

This being the law, in our view, both the

Sessions Judge and the High Court were

wrong in concluding that the omission to put

the contents of the certificate of the

Director, Central Food Laboratory, could

only result in the accused being acquitted.

The accused had to show that some

prejudice was caused to him by the report

not being put to him. Even otherwise, it was

the duty of the Sessions Judge and/or the

High Court, if they found that some vital

circumstance had not been put to the

accused, to put those questions to the

counsel for the accused and get the answers

of the accused. If the accused could not give

any plausible or reasonable explanation, it

would have to be assumed that there was no

explanation. Both the Sessions Judge and

the High Court have overlooked this

position of law and failed to perform their

duties and thereby wrongly acquitted the

accused.”

Patna High Court CR. APP (SJ) No.261 of 2015 41

26. This Court has thus widened the scope of the

provisions concerning the examination of the

accused after closing prosecution evidence and the

explanation offered by the counsel of the accused at

the appeal stage was held to be a sufficient

substitute for the answers given by the accused

himself.

27. The point then arising for our consideration is,

if all relevant questions were not put to accused by

the trial court as mandated under Section 313

Cr.P.C. and where the accused has also shown that

prejudice has been caused to him or where

prejudice is implicit, whether the appellate court is

having the power to remand the case for re-

decision from the stage of recording of statement

under Section 313 Cr.P.C. Section 386 Cr.P.C.

deals with power of the appellate court. As per sub-

clause (b) (i) of Section 386 Cr.P.C., the appellate

court is having power to order retrial of the case by

a court of competent jurisdiction subordinate to

such appellate court. Hence, if all the relevant

questions were not put to accused by the trial court

and when the accused has shown that prejudice was

caused to him, the appellate court is having power

to remand the case to examine the accused again

under Section 313 Cr.P.C. and may direct
Patna High Court CR. APP (SJ) No.261 of 2015 42

remanding the case again for re-trial of the case

from that stage of recording of statement under

Section 313 Cr.P.C. and the same cannot be said to

be amounting to filling up lacuna in the prosecution

case.

28. In Asraf Ali v. State of Assam 2008(3)

R.C.R.(Criminal) 835 : 2008(4) Recent Apex

Judgments (R.A.J.) 570 : (2008) 16 SCC 328, this

Court has examined the scope and object of

examination of accused under Section 313 Cr.P.C.

and in para (24) it was observed that in certain

cases when there is perfunctory examination under

Section 313 of the Code, the matter could be

remitted to the trial court with a direction to retry

from the stage at which the prosecution was closed.

29. In Ganeshmal Jashraj v. Government of

Gujarat Anr., (1980) 1 SCC 363, after closure of

evidence of the prosecution and examination of

accused under Section 313 Cr.P.C. was completed,

the accused admitted his guilt presumably as a

result of plea bargaining and the accused was

convicted. Pointing out that the approach of the

trial court was influenced by the admission of guilt

made by the accused and that conviction of the

accused cannot be sustained, this Court has

remanded case to trial court to proceed afresh from
Patna High Court CR. APP (SJ) No.261 of 2015 43

the stage of examination under Section 313 Cr.P.C.

30. Whenever a plea of omission to put a question

to the accused on vital piece of evidence is raised in

the appellate court, courses available to the

appellate court can be briefly summarised as under

:-

(i) Whenever a plea of non-compliance of

Section 313 Cr.P.C. is raised, it is within the

powers of the appellate court to examine

and further examine the convict or the

counsel appearing for the accused and the

said answers shall be taken into

consideration for deciding the matter. If the

accused is unable to offer the appellate

court any reasonable explanation of such

circumstance, the court may assume that the

accused has no acceptable explanation to

offer;

(ii) In the facts and circumstances of the

case, if the appellate court comes to the

conclusion that no prejudice was caused or

no failure of justice was occasioned, the

appellate court will hear and decide the

matter upon merits.

(iii) If the appellate court is of the opinion

that non-compliance with the provisions of
Patna High Court CR. APP (SJ) No.261 of 2015 44

Section 313 Cr.P.C. has occasioned or is

likely to have occasioned prejudice to the

accused, the appellate court may direct

retrial from the stage of recording the

statements of the accused from the point

where the irregularity occurred, that is,

from the stage of questioning the accused

under Section 313 Cr.P.C. and the trial

Judge may be directed to examine the

accused afresh and defence witness if any

and dispose of the matter afresh;

(iv) The appellate court may decline to remit

the matter to the trial court for retrial on

account of long time already spent in the

trial of the case and the period of sentence

already undergone by the convict and in the

facts and circumstances of the case, may

decide the appeal on its own merits, keeping

in view the prejudice caused to the

accused.”

Now, coming to the present case, it is apparent that

neither this point was raised at the end of appellants during course of

argument nor been able to show what kind of prejudice they faced on

account of such omission. Moreover, the appellants, as faced the trial

was very much aware with the nature of evidence having been
Patna High Court CR. APP (SJ) No.261 of 2015 45

adduced on behalf of prosecution against them. Therefore, it could not

be said that such omission has any way caused prejudice to the

appellants.

15. Now, the second part of evidence having been

adduced on behalf of prosecution is coming out from the evidence of

PW-6, informant, father of the deceased. Right from fard-bayan, there

happens to be specific disclosure that on account of due amount of

dowry of Rs.30,000/-, deceased was frequently subjected to dowry

which, he during course of evidence also reiterated. No cross-

examination has been made on behalf of appellants in a way to

demolish such assertion.

16. In Gangabhavani vs. Rayapati Venkat Reddy

others reported in 2013 CRI.L.J. 4618, it has been held:-

“17. This Court in Laxmibai (Dead) Thr. L.Rs.

Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. Ors.,

AIR 2013 SC 1204 examined the effect of non- cross

examination of witness on a particular

fact/circumstance and held as under:

“31. Furthermore, there cannot be any dispute with

respect to the settled legal proposition, that if a

party wishes to raise any doubt as regards the

correctness of the statement of a witness, the said

witness must be given an opportunity to explain his
Patna High Court CR. APP (SJ) No.261 of 2015 46

statement by drawing his attention to that part of it,

which has been objected to by the other party, as

being untrue. Without this, it is not possible to

impeach his credibility. Such a law has been

advanced in view of the statutory provisions

enshrined in Section 138 of the Evidence Act, 1872,

which enable the opposite party to cross-examine a

witness as regards information tendered in evidence

by him during his initial examination in chief, and

the scope of this provision stands enlarged by

Section 146 of the Evidence Act, which permits a

witness to be questioned, inter-alia, in order to test

his veracity. Thereafter, the unchallenged part of

his evidence is to be relied upon, for the reason that

it is impossible for the witness to explain or

elaborate upon any doubts as regards the same, in

the absence of questions put to him with respect to

the circumstances which indicate that the version of

events provided by him, is not fit to be believed, and

the witness himself, is unworthy of credit. Thus, if a

party intends to impeach a witness, he must provide

adequate opportunity to the witness in the witness

box, to give a full and proper explanation. The same

is essential to ensure fair play and fairness in

dealing with witnesses.” (Emphasis supplied)

(See also: Rohtash Kumar v. State of Haryana, JT
Patna High Court CR. APP (SJ) No.261 of 2015 47

2013 (8) SC 181; and Gian Chand Ors. v. State

of Haryana, JT 2013 (10) SC 515).

18. Thus, it becomes crystal clear that the defence

cannot rely on nor can the court base its finding on

a particular fact or issue on which the witness has

not made any statement in his examination-in- chief

and the defence has not cross examined him on the

said aspect of the matter.”

17. It has been submitted on behalf of learned counsel for

the appellants that the evidence of all the witnesses is fit to be brushed

aside on account of being unreliable. In order to substantiate the same,

it has been submitted that in spite of claiming their presence, PW-1,

PW-2, PW-3 have not said a word against the appellants over demand

of dowry and further, torture having inflicted over the deceased since

before her death on that very score and so, the evidence of PW-5 as

well as PW-6 should not be accepted on that very score. Furthermore,

it has been argued that when there happens to be plausible explanation

at the end of the accused regarding death of the deceased, then in that

event, accepting the same, appellant should have been acquitted.

18. Furthermore, it has also been submitted that

unreliability of the witnesses is itself apparent from their conduct

which, after going through their evidences will suggest. The

prosecution took a novel method by making a disclosure that they
Patna High Court CR. APP (SJ) No.261 of 2015 48

reached at the appellants place till then, deceased was alive, who on

query, had disclosed the whole event which would not have been in

the background of the finding recorded by the doctor PW-4, found

hundred per cent ante mortem burn injuries. Furthermore, the

witnesses are inconsistent with regard to verbal narration of the so

alleged oral dying declaration as well as with regard to physical

condition of the deceased and that being so, the dying declaration

having at the end of the prosecution to be the major plank of evidence

is found non-recognizable in the eye of law. That being so, the

prosecution version should not have been relied upon.

19. It has also been submitted that from the evidence of

PW-10, the I.O., it is evident that apart from fallacious investigation

conducted by him, he going to camp of the prosecution, had tried to

give undue advantage and further, under such activity, he failed to

inspect the P.O. properly. Had there been a proper investigation, then

in that event, the objective finding would have suggested probability

of the defence case justifying the evidence of the defence witness

disclosing commission of suicide and further, at that very moment,

none of the family members were present and so, the finding of the

learned lower Court requires reappraisal.

20. It has also been submitted that once on the similar

kind of evidence, the other co-accused have already been acquitted,
Patna High Court CR. APP (SJ) No.261 of 2015 49

then in that event, appellants would not have been convicted. So, the

cumulative effect nullify the judgment impugned.

21. Per contra, it has been submitted on behalf of learned

Additional Public Prosecutor that death is no more under controversy,

death within seven years of marriage is also not been challenged, then

in that event, the other ancillary event as projected by the learned

counsel for the appellants would have no impact upon the fate of the

prosecution on account of consistent evidence on that very score. That

being so, the judgment of conviction and sentence recorded by the

learned lower Court is found maintainable.

22. Having minute observation of the evidence as

discussed above, it is evident that the death within span of seven years

from the date of marriage and demand of dowry followed with

treatment meted out to the deceased soon before death is found duly

substantiated. Furthermore, complicity of the appellants also found

duly proved.

23. In the aforesaid background, now, it could very well

be said that it happens to be a case of dowry death and on account

thereof, the appellants would have an opportunity to rebut which they

availed by way of examine one DW Ghurni Devi. When the evidence

of Ghurni Devi has been gone through, it is evident that the villagers,

after seeing smoke coming out from the house of the appellants,
Patna High Court CR. APP (SJ) No.261 of 2015 50

rushed. The door, which was closed from inside was broken and then,

villagers gone inside the house where they saw the victim dead on

account of being burnt. The aforesaid event though introduced but

found shaky one as from the evidence of PW-10, the I.O., it is

apparent that appellants have not cross-examined PW-10 on that very

score, even suggesting that he failed to inspect the door, the latches

affixed thereupon. Moreover, had there been it a case of suicide, then

in that event, having presence of dead body in static position lying on

the ground would not have been visualized. Not only this, some sort

of ancillary event would have also been visualized by way of burning

of thatched wall as well as presence of shadow of flame, the bed-

sheet, the bed also have been burnt which has not been found by the

I.O.

24. Acquittal of co-accused would not be a ground for

acquittal of other co-accused in case there happens to be substantial

evidence against him. Considering the present nature of the case in

consonance with the status of appellants and further, the crime having

been committed within four corner of the house as well as oral dying

declaration identifying the appellants to be perpetrator of the crime

did not justify the claim of the appellants to be treated at par with the

accused having been acquitted.

25. That being so, both the appeal san merit and are
Patna High Court CR. APP (SJ) No.261 of 2015 51

accordingly, dismissed. Appellants are under custody, which they

remain till saturation of the period of sentence.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR       A.F.R.
CAV DATE 21.02.2017
Uploading Date 02.03.2017
Transmission 02.03.2017
Date
 

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